Summary
In Bohannon the issue was whether the insurer waived a condition contained in its application for insurance providing that the insurance was not to go into effect until after the policy had been issued and delivered to the insured "while she was in good health."
Summary of this case from Burckhardt v. General Am. Life Ins. Co.Opinion
Opinion filed September 23, 1929.
1. — Life Insurance — Provision in Application for Life Insurance that Policy Should Not be Effective Unless Insured was in Good Health, Held Valid, but may be Waived. A provision in an application for life insurance policy that policy would not be effective until delivered while insured was in good health, held valid and binding, but may be waived by company.
2. — Insurance — Whether Insurance Company Waived Provision Requiring Delivery of Policy while Insured was in Good Health Question for Jury. In suit on life insurance policy, whether the company had waived the provision of the application that the policy should not take effect until delivered while insured was in good health, held question for jury.
3. — Trial — Demurrer Should be Overruled if any Evidence of Waiver of "Good Health" Provision. In passing on demurrer to the evidence, such demurrer was properly overruled, if there was any evidence that the insurance company waived "good health" provision in the application.
4. — Insurance — "Good Health" Provision in Application not Warranty under Missouri Statute. Under Missouri Statute, section 6142, Revised Statutes Missouri 1919, the provision in policy that insured shall be in good health at time of delivery no longer possesses force of a warranty.
5. — Trial — Question of Waiver and Condition of Insured's Health at Time and Delivery of Policy for Jury. Whether the insurance company had waived the "good health" clause in the application and the condition of insured's health at time of delivery of policy, held proper questions for the jury.
6. — Same — Amendment of Instruction by Trial Court. The trial court properly amended instruction offered by defendant, including a proviso incorporating the theory of waiver of the "good health" clause by the company.
7. — Insurance — Evidence Held Sufficient to Provide Agency of Insurer's Agent in Suit on Life Policy. In action on life insurance policy evidence held sufficient to prove agency of insurer's agent, where insurer in its answer admitted that policy was "duly delivered" and evidence showed that the agent solicited the application and delivered policy.
8. — Trial — Instructions not Inconsistent. An instruction asked and given for plaintiff in an action to recover under life insurance policy was not inconsistent because it permitted a recovery, if jury believe (a) if policy was delivered while insured was in good health, or (b) if agent of company knew condition of insured's health at time he delivered policy.
Appeal from Dunklin County Circuit Court. — Hon. W.S.C. Walker, Judge.
AFFIRMED.
Hugh T. Martin and Orville Zimmerman for appellant.
(1) The court erred in refusing and overruling defendant's demurrer to the evidence at the close of plaintiff's case and at the close of the whole case, because: (a) Under the provisions set forth in the application, which is made a part of the policy sued on, and the conceded testimony of plaintiff, viz., that his wife continued sick from the date of his arrival home on December 18th until she died on January 2, 1928, plaintiff could not recover. Carpenter v. St. Joseph Life Ins. Co. (Mo. App.), 246 S.W. 623; Bell v. Mo. State Life Ins. Co., 166 Mo. App. 390; Pierce v. Ins. Co. (Mo. App.), 179 S.W. 749; Edwards v. B.M.A. Assn., 205 Mo. App. l.c. 111. (b) The testimony offered by plaintiff on the issue of waiver is not sufficient, under the law, to constitute a waiver of the provision in the application, requiring the assured to be in good health at the time the policy is delivered. Springfield G. E. Co. v. Southern S. Co. (Mo. App.), 250 S.W. l.c. 81; Callies v. Modern Woodmen, 98 Mo. App. l.c. 527; Davis v. Yorkshire Ins. Co. (Mo. App.), 288 S.W. 80, l.c. 83; Schwab v. Brotherhood of American Yeomen, 264 S.W. 690, l.c. 692; Langdon v. Kleeman, 278 Mo. 236, l.c. 242; Schwab v. Yeoman, 305 Mo. 148, 155; State v. Trimble, 276 S.W. 1020, l.c. 1024. (c) There is no competent testimony showing that Sinseney was the agent of the company, and that he had any authority to waive, if he did waive, the requirement that the policy must be delivered while assured was in good health. Agency is a fact, the burden of proving, which rests upon the party affirming its existence. Alexander v. Rollins, 84 Mo. 657; Wade v. Boone (Mo. App.), 168 S.W. 366; Mathes v. Lumber Co., 173 Mo. App. 239; 2 C.J., p. 923 (662); Sec. 1235, R.S. Mo. 1919; Blackman v. McAdams, 111 S.W. (Mo. App.) 559; Smissman v. Wells, 255 S.W. 935; 31 Cyc., pp. 251, 252, 253. (2) The court erred in giving instruction No. 1 for plaintiff, because: (a) The following language in said instruction, "and if you shall find from the evidence that the said policy was delivered to said Martha E. Bohannon while she was in good health, or that the agent of the company knew the condition of her health when he delivered the policy," authorizes a recovery for plaintiff upon two inconsistent theories, viz. (1) that deceased was in good health at the time the policy was delivered, and (2) that the agent of the company knew of the condition of health of insured when he delivered the policy. Crews v. Wilson, 281 S.W. 33; Amos v. Fleeming, 285 S.W. 134; Kuhlman v. Water, L. T. Co., 271 S.W. 788; Seithel v. St. Louis Dairy Co., 300 S.W. 280; Anderson v. Sutton, 275 S.W. 32, 308 Mo. 406; State ex rel. v. Davis, 284 S.W. 463; Nahorski v. Ry. Co., 274 S.W. 1025. (b) Said instruction invades the province of the jury in assuming that the agent of the company delivered the policy without submitting the finding of such fact to the jury. Welty v. S.H. Kress Co., 295 S.W. 501; Barnes v. Baker, 299 S.W. 80; Kibler v. Rogland, 263 S.W. 507. (c) Said instruction, purporting to cover the whole case and authorizing a recovery, did not require a finding of the fact of agency of the person who delivered the policy, or that the agent of the company delivered the policy, all necessary findings on the theory of waiver. Herron v. Smith, 285 S.W. 544; Heigold v. United Rep. Co., 271 S.W. 773, 308 Mo. 142. (3) The court erred in refusing defendant's requested instruction No. 3 and in giving modified instruction No. 3 for defendant because that part of the instruction added to defendant's requested instruction No. 3 invades the province of the jury and assumes certain facts to be true, without a finding of the jury thereon, which are material and essential on the issue of waiver. W.G. Bray for respondent.
(1) Respondent contends that notice to the agent is notice to the company and the company through its agent, Sam E. Sinseney, had full knowledge of the condition of the insured at the time of delivery of the policy, and hence the company waived the "good health" clause in the application. Carpenter v. St. Joseph Life Insurance Co., 246 S.W. 623; Springfield Gas Electric Co. v. Surety Company, 250 S.W. 78; Henderson v. Koenig, 192 Mo. 690; Murrmann v. Wisslei, 116 Mo. App. 397; Reed v. Bankers Union, 121 Mo. App. 419. (2) Representations are not part of a contract in the sense that warranties are but inducements to a contract, though not facts which are construed to be true, and they do not have to be construed true as do warranties.
Plaintiff brought suit on a life insurance policy, in which he was named beneficiary, issued by defendant to plaintiff's wife, Martha E. Bohannon, deceased. This policy was for $1000 and was issued December 24, 1927. Martha E. Bohannon died January 2, 1928. Defendant refused payment and this suit resulted. The judgment in the trial court was for plaintiff and defendant has appealed.
Defendant contends that its demurrer to the evidence, filed at the close of plaintiff's case, should have been sustained. This contention is based, primarily, upon an alleged breach of a certain condition or stipulation contained in the application for insurance providing, in substance, that the insurance was not to go into effect until after the policy should have been issued and delivered to insured while she was in good health. The application was dated December 13, 1927, and signed by the insured. It seems she was pregnant at that time and suffered a miscarriage on December 17th, thereafter. The policy was delivered to plaintiff by defendant's local insurance agent, Sam E. Senseney, for further delivery to the insured. Plaintiff testified that at the time Senseney brought the policy to him for delivery he told Senseney that his wife had been sick since the date of the application; that she had suffered, "a miscarriage," on the 17th of December, but that she was, "improved;" that he did not tell him his wife was, "in a serious condition;" that he was not asked whether his wife was sick at that time, and did not recall whether or not he told Senseney about her condition on that particular day. There was no other evidence in the case, and this testimony was uncontroverted. Insured was sick continuously from the 17th of December, 1927, until January 2, 1928, when she died. The policy was delivered between those dates, under the circumstances above related. Plaintiff furnished proofs of death of his wife, but the record fails to set out such proofs and the cause of insured's death is not shown. Defendant refused payment of the policy on or about February 4, 1928.
The provision in the application for insurance that the policy should not become effective until delivered while the insured was in good health, was a valid and binding condition of the contract of insurance. [Benson v. Metropolitan Life Ins. Co., 161 Mo. App. 480, 144 S.W. 122; Yount v. Prudential Life Ins. Co., 197 S.W. 749; Carpenter v. St. Joseph Life Ins. Co., 246 S.W. 623; Stephens v. Metropolitan Life Ins. Co., 190 Mo. App. 673, 176 S.W. 253.]
But such provision, being for the benefit of the company, might be waived by such company. [Bell v. Insurance Co., 166 Mo. App. 390, 149 S.W. 33; Rhodus v. K.C. Life Ins. Co., 156 Mo. App. 281, 137 S.W. 907; Herndon v. Triple Alliance, 45 Mo. App. 426.]
In considering the demurrer, the first question is whether or not there was any evidence that defendant waived the "good health," provision of the application signed by insured. We believe the decisions establish the proposition that an insurance agent, clothed with authority to solicit insurance, collect premiums and deliver policies, may receive such notice of the breach of a condition, at the time he may deliver the policy, as to bind the insurer by a waiver of such condition. [Bennett v. Standard Acc. Ins. Co., 237 S.W. 144, 209 Mo. App. 81; Benson v. Metropolitan Life Ins. Co., 161 Mo. App. 481, 144 S.W. 122; Tiller v. Farmers Mutual Fire Ins. Co., 296 S.W. 464; Connecticut Indemnity Assn. v. Gregon, 21 Ky. 717, 52 S.W. 959; Metropolitan Life Ins. Co. v. Willis, 37 Ind. App. 48, 76 N.E. 560; Ames v. Manhattan Life Ins. Co., 57 N.Y.S. 759.]
According to plaintiff's testimony defendant's agent knew the insured had been pregnant at the time she signed the application. He also knew she had suffered a miscarriage between the date of the application for insurance and the date of the delivery of the policy. He further knew she had not fully recovered. We think such knowledge was sufficient to, at least, make a question for the jury on the proposition of a waiver.
The demurrer was properly overruled for the further reason that defendant failed to prove that the admitted pregnancy of insured, and miscarriage suffered by her, contributed to her death. Under our statute, stipulations in insurance policies, that the insured shall be in good health at the time of delivery of the policy, no longer possess the force of a warranty. Unless the poor health contributes to cause the death of the insured, liability cannot be denied on that ground; and, in any case, it shall be a question for the jury, in the absence of an admission by plaintiff wholly unexplained. [Sec. 6142, R.S. Mo. 1919; Lynch v. Prudential Life Ins. Co., 150 Mo. 882 Mo. App. 461, 131 S.W. 145; Frazier v. Ins. Co., 161 Mo. App. 709, 141 S.W. 936; Hicks v. Ins. Co., 196 Mo. App. 162, 190 S.W. 661.]
There was no such admission by plaintiff and we, therefore, think the question as to whether insured's state of health at the time of delivery of the policy was a contributing factor to her death, was for the jury.
The trial court properly amended defendant's instruction 3, directing a verdict for defendant if insured was not in good health at the time the policy was delivered. The amendment consisted of a proviso incorporating the waiver theory. We have held the evidence heretofore set forth was sufficient to make the question of waiver one for the jury. Moreover, the instruction was improper as offered because it took from the jury, entirely, the duty of finding whether or not the sickness of insured at the time the policy was delivered contributed to her death.
The proof of agency of Senseney is questioned. We think the agency was, in effect, admitted by defendant by its admission that the policy was, "duly delivered." The evidence also shows Senseney solicited the insurance and delivered the policy, which had evidently been sent him by defendant for that very purpose. Furthermore, the policy itself shows Senseney to have been the soliciting agent. The issue was not in regard to the fact of agency but rather as to the extent of the agent's authority. We have disposed of that question.
It is urged that plaintiff's instruction No. 1 was erroneous because it presented to the jury two inconsistent theories, i.e., that (1) if the policy was delivered while insured was in good health or (2) if the agent of the company knew the condition of her health when he delivered the policy, etc., plaintiff was entitled to recover. The issue as to insured being in good health was also submitted by defendant in its instruction. Plaintiff was entitled to submit the question of waiver which, if proven, amounted to a compliance with all the conditions of a valid delivery. [Hooker v. Insurance Co., 69 Mo. App. 141.]
We find no inconsistency in the instruction. Moreover, all the instructions were so drawn as to deny recovery to plaintiff if insured was sick at the time of delivery of the policy, without requiring the jury to further find that such sickness contributed to the death of insured. Defendant thus obtained more favorable instructions than it was entitled to, as heretofore indicated. We find no reversible error in the trial and the judgment should be affirmed. It is so ordered. Cox, P.J., concurs; Smith, J., not sitting.